Catch Me if You Can: The OSCE Report and the hunt for the elusive “human right to the Internet”

The already long-lasting debate on Internet access as a human right has gained momentum again, as the OSCE Report on Freedom of Expression on the Internet was released at the beginning of July. The Report affirmed that «only 30% of the [States participating in the survey] stated that they recognize access to the Internet as a basic human right or as implied to the fundamental right to freedom of expression» and thus concluded that, as an aim for future developments,

«Everyone should have a right to participate in the information society, and the states have a responsibility to ensure citizens’ access to the Internet is guaranteed. Furthermore, Internet access policies, defined by governments, should be in line with the requirements of Article 19 of the Universal Declaration of Human Rights as well as Article 19 of the International Covenant on Civil and Political Rights and (where applicable) with Article 10 of the European Convention on Human Rights».

The coverage of the Report in the media was extensive, with catchy titles announcing that the OSCE is now backing the cause of making Internet access a fundamental human right, following the example of a number of national Governments that purportedly already acknowledge Internet access as a fundamental right, such as Finland and Estonia.

The Report has so become the latest episode of a confused, even surreal at times, saga of continuous attempts to claim the existence of a right to Internet connection directly descending from the principle of freedom of expression as currently protected by international human rights law. Like in a (poor) detective novel, the wanted subject is hunted everywhere by everyone, everyone claims to have seen them everywhere (in this or that international human rights treaty, in this or that national provision, in this or that national or supranational supreme court ruling), yet nobody manages to catch them. Like in the most predictable plots, the hunt appears to be hampered by false leads and red herrings – such are all the claims that international human rights law would already vest in principle a right to Internet access, which would only need to be better implemented and enforced, or that some national jurisdictions would already provide for a fundamental right to broadband. In spite of all the uproar, such a thing like a fundamental right to Internet connection is still a sort of chimera. Even the virtuous examples of Finland and Estonia, which the Report cites as the standard-bearers of the fundamental human right to Internet, beg to be considered with more attention. Finland, for instance, became the first country in the world, in July 2009, to declare broadband Internet access a legal right. The relevant piece of regulation, Section 60(3) of the Communications Market Act (notably, an ordinary statute, not one of constitutional level) requires the telecommunication companies to provide all the citizens with Internet connection that runs at speeds of at least 1 megabit per second. Announcing the launch of the provision the legislative counselor for the Ministry of Transport and Communications was reported to say that the new regulative toolkit was meant to meet the needs of modern society in which Internet connection is simply a primary necessity «like banking services or water or electricity». Following this stream of reasoning, why could not be the provision of banking services the next human right to come out (and maybe access to on-line banking services could be considered a joint exercise of these new fancy fundamental rights then)? If this sounds queer is only because the whole premise is wrong.

Words need to be used accurately. The category of “human rights” identifies those established by the means of international treaties, that transform moral and political norms into legally binding state obligations and often include provisions for enforcement and adjudication. At the international level, human rights exist as norms because treaties have provided for them and have turned them into international law. These provisions usually have a high degree of flexibility, but also boundaries and limits: they protect certain freedoms and guarantee certain rights, but not others; whether a treaty provision can be stretched enough to include and protect further interests, is more a matter of legal interpretation of wording than moral philosophy. In national jurisdictions, “fundamental rights” (although the denomination varies significantly among legal systems) are those vested in Constitutions, Bills of Rights or other statutes of higher level, which (opposite to standard legal rights, provided by ordinary statutes) usually cannot be repealed, require a special procedure in order to be amended, and are protected by courts with stricter standards of judicial review. Far from being a matter of “labels”, the distinction between “ordinary” and fundamental rights pertains to the standards of protection and guarantees enjoyed by the rightholders. The right to broadband provided by the Finnish statute is a legal, not a fundamental one. It is still a right, obviously, and a highly valuable one. Yet it might be repealed, or amended and weakened, on any day. And the same might happen in Albania, Estonia, Germany and all the other Countries where the OSCE has glamorously found an existing “fundamental” right to Internet access.

Despite all this, the refrain of Internet access as a “fundamental” or “human” right has been going on for a while now. Just like all the folk tales and urban myths, to trace it back to its origin would perhaps be impossible; it might have originated from the Economic and Social Council of the United Nations held in July 1998, when the UN agreed to pursue a collaborative initiative with the International Telecommunication Union «on the emerging concept […] of a right to communicate in the context of universal access to basic communication and information services» (and notably in the whole statement such an emerging right is neither defined as a “fundamental” nor as a “human” one). The 2003 World Summit on the Information Society is also commonly considered a milestone of the ascent of the “right to broadband”; the resulting Declaration of Principles acknowledged in fact that «the ability for all to access and contribute information, ideas and knowledge is essential in an inclusive Information Society» and expressed commitment to «promote universal access with equal opportunities for all to scientific knowledge and the creation and dissemination of scientific and technical information, including open access initiatives for scientific publishing», which is again, though, something rather different than declaring, or even pursuing to establish, a fundamental right (for instance, it was also stated that the goal of universal access could be «promoted by increasing awareness among all stakeholders of the possibilities offered by different software models», hence through policy plans rather than enforceable rights). At the 2003 World Summit the civil society delegates from a number of NGOs produced the declaration Shaping Information Societies for Human Needs, where it is stated that «communication is […] a basic human need and […]this implies that every person must have access to the means of communication and must be able to exercise their right to freedom of opinion and expression, which includes the right to hold opinions and to seek, receive and impart information and ideas through any media and regardless of frontiers». The declaration addresses the fact that Internet access is ultimately a mean to an end and could possibly be considered as a new way to enjoy an already existing right, rather than a brand new right itself.

The “already existing right” the drafters of the declaration referred to is, obviously, the freedom of opinion and expression, and the right to receive and transmit communications through any available media, one of the most classic examples of a civil right. It is stated at Art. 19 of the International Covenant on Civil and Political Rights and in a number of regional human rights instruments, such as the European Convention of Human Rights, the European Charter of Fundamental Rights, the African Charter on Human and Peoples’ Rights and the American Convention on Human Rights, and it is undisputable that it «applies to the Internet, just as it does to other communication media», as declared in the UN/OSCE joint statement on Challenges to freedom of expression in the new century of 2001. The assimilation of Internet under the same umbrella as any other media is made even clearer elsewhere in the same document («States should not adopt separate rules limiting Internet content») as well as in further declarations, like the first Principle of the Declaration on freedom of communication on the Internet of the Council of Europe of 2003 («Member States should not subject content on the Internet to restrictions which go further than those applied to other means of content delivery»).

The bad surprise is that, while the OSCE Report strongly claims that Internet access policies defined by Governments should become in line with the requirements of the international treaties protecting freedom of expression, even if all those treaty obligations were perfectly fulfilled a right to access would still be missing. All of the mentioned international instruments protect freedom to receive and impart information through any mean and apply to the Internet at the same extent as to the other traditional media. These provisions are drafted as classical, liberty rights (meaning that the exercise of such rights is protected from interference from public authorities) rather than as “claim” rights (where Governments would bare a duty to take action towards their fulfillment). For instance it follows on that, as stated in the UN/OSCE joint statement of 2005, «filtering systems which are not end-user controlled – whether imposed by a government or commercial service provider – are a form of prior-censorship and cannot be justified», as censorship is likewise prohibited with regard to the press, whilst it does not follow on that account that States have a responsibility to provide citizens with newspapers and magazines. Just like papers and magazines are not a public utility, there is nothing in the core of the international provisions protecting freedom of expression that implies that Internet access should be. The well famous ruling released by the French Constitutional Council in 2009, striking down the provision contained in the Hadopi Law which would disconnect repeat online copyright infringers, is another common misunderstanding in this sense. Although widely interpreted as a statement of Internet access as a fundamental right, the ruling genuinely says something different: the Constitutional Council does admit that access to Internet is linked to, and protected by, freedom of expression as vested in the Declaration of the Rights of Men and of the Citizens of 1789, but this implies “only” that disconnection would appear to be a disproportionate penalty. In other words, the Constitutional Council has found that the French constitutional guarantee for freedom of expression prevents a public authority from depriving of their Internet connection those who have already purchased it by themselves (the guarantee consists of protection from interferences, like in the classic model of liberty rights), not that the Government is under an obligation to actively provide for connection, which would be rather different. On a slightly different account, we are well used to the fact that freedom of expression does not entail a right for every individual to spread their thoughts through the press: although everyone is entitled to impart information and ideas without interference by public authority, newspapers are private companies that employ their own journalists and may rejects contributes from external contributors and freelancers. The same happens for television, where community-developed stations are a special case (and in most cases they have internal boards that can disapprove and reject the proposed user-generated contents) and are not the expression of the existence of a would-be right “to speak on TV” as a further facet of freedom of expression. The only exception to the rule is the rather peculiar case of the right to reply that most legal systems provide for. It is true that the Internet offers some extraordinary chances for communication that the traditional media never offered before, but just like the principle of free speech is not shaped in the fashion of a claim right and does not involve a “right to participate” in the existing media outlets (surely everyone is free to launch their own newspaper title or TV station, provided that they can afford it – unfortunately very few people can), nothing says that it should entail a right to connection, either as a mean to access or to spread information.

All this said, it is unquestionable that a “right to broadband” would be a desirable legal measure, although it should be clear that it would be a freshly minted provision rather than a further application of the already existing principles. The set of norms established both at international and national levels obviously provide for a minimal standard of protection of freedom of speech that can be enhanced if national governments or the international community are willing to do so. In order to seriously try to develop a policy plan on international scale for a “right to broadband”, it would be convenient to get rid of all of the loose talks and misperceptions of what is a fundamental human right and what is not, and what are the boundaries of freedom of expression, that have been going on till now. The international guarantees for free speech at present can hardly be stretched enough to directly encompass a right to access, but this does not deny a chance to pass new pieces of regulation that would fit well under the broad umbrella of the existing provisions. Back in 2009, the Council of Europe released an interesting resolution where the possibility of considering access to the Internet as a part as part of Member State’s provision of public services was considered. Something similar is actually provided in Spain and Turkey that have included Internet connections in their national statutes on universal service. This is a suitable path (although, once more, the story was told in the media as if the Council of Europe were declaring access to the Internet a fundamental human right): the international treaties on freedom of expression do not put the States under an obligation to provide for public service television stations, but rather they have the choice to do so (the Protocol on the system of public broadcasting in the Member States annexed to the Treaty on European Union allows PBS as an exception to the general rule that State aids are forbidden and considers the public service remit «conferred, defined and organised by each Member State») and in fact they all do so. Getting rid of all the misconceptions would also help to develop a considered debate on the limits of freedom on the Internet, what should be allowed and what not, what are the interests at the stake and how much consideration they deserve, clearing the ground from some excessively partisan and groundless positions (for instance, the human rights organisation Article19 has recently criticised the final declaration of the G8 leaders at the Deauville Summit because of its attempts to balance Internet freedom with protection of intellectual property, arguing that it would mean to ignore «the international legal obligations that states owe under international human rights treaties, in particular the International Covenant on Civil and Political Rights [since h]uman rights, as protected under international law, do not place obligations on citizens», as if the relevant provisions in the ICCPR and the ECHR didn’t specify that the exercise of freedom of expression «carries with it duties and responsibilities»).

Contrary to the rising, but wrongful perception, international human rights law does not entail a fundamental right to Internet access, while the examples from some national provisions are, even in the most significant cases like the Finnish provision, of a different species (i.e. a legal and subjective right, but not a fundamental one). Nonetheless, it is out of doubt that establishing such a right would be of high significance and importance to the possibility of sharing information and knowledge, to achieve the full potential of the latest developments of the information society, and ultimately to human development in general. It is a cause that deserves to be supported but also needs to be taken seriously. It is just pointless to keep trying to spot a “fundamental human right to Internet access” anywhere possible, in the principles of international human rights law or in national legislations and rulings, where genuinely there is not. It would prove so more efficient to develop a debate on this issue founded on the correct premises, that a right to Internet access, although connected to the principle of free speech, is not vested in the core of international human rights law as currently in force, it needs to be newly coined and might be somehow subject to certain limitations in order to strike a suitable balance with other relevant interests at the stake. This is just a hope for now, and maybe it is destined to remain so, as now even the OSCE has worryingly joined the club of the enthusiastic hunters of the literally most virtual, and least real, human right that ever existed.